Swann v R [1999] WASCA 106

Evidence Act 1906 (WA), s 106

Declarations and Attestations Act 1913 (WA), s 2

Road Traffic Act 1974 (WA), s 111(5)

Interpretation Act 1984, s 74

Respondent : Acting State Director of Public Prosecutions

1 MALCOLM CJ: This was an application for leave to appeal against conviction. On 18 November 1998 the appellant was convicted on a count of making a false declaration contrary to s 170 of the Criminal Code which provides that:

"Any person who, on any occasion on which he is permitted or required by law to make a statement or declaration before any person authorized by law to permit it to be made before him, makes a statement or declaration before that person which, in any material particular, is to his knowledge false, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

"On 18 November 1996 at Esperance GEOFFREY MAXWELL SWANN being permitted by law to make a declaration touching the licensing of Ford traytop motor vehicle chassis number DB2421S made a declaration touching that matter before PIETA RAYLENE HOLTHOUSE who was then authorised by law to permit the declaration to be made before her which declaration was false in a material particular, namely in that it was thereby declared that GEOFFREY MAXWELL SWANN had purchased the said Ford motor vehicle when GEOFFREY MAXWELL SWANN had not in truth purchased the said Ford motor vehicle as GEOFFREY MAXWELL SWANN then well knew."

3 There was also a second count in the indictment which alleged that on the same date and at the same place the appellant stole the Ford traytop motor vehicle the property of Chessella Pty Ltd ("Chessella"). The appellant was acquitted in respect of the stealing count.

4 Leave to appeal was sought on the following ground:

(a) that the whole of the document signed by the Applicant was a declaration, and, or

(b) that the document was a declaration pursuant to s 106 of the Evidence Act 1906,

in both cases having regard to the form of the document and in the second ground, the requirements of s 106 of the Evidence Act, as the document was not in the form prescribed by the section aforesaid."

5 The Crown case against the appellant was that he made a false statement in a statutory declaration that he purchased a motor vehicle, when he had not in fact done so, and that, at the time he made the statutory declaration, he knew that he was making a false statement.

6 The background was that the appellant and a Mr Robertson had been discussing a mutual arrangement under which Mr Robertson, who operated a crayfishing business through Chessella, would catch crayfish and deliver them to the appellant's firm for processing. Chessella owned a 1968 red Ford traytop truck the licence for which had expired in 1995. Arrangements had to be made for the vehicle to be re-licensed.

7 On 8 November 1996, having obtained a permit, Mr Robertson took the truck to the Department of Transport at Esperance to be inspected for the purpose of getting it re-licensed. Some minor work had to be done. An inspection fee of $83 was paid for by Denville Pty Ltd ("Denville"), a company controlled by the appellant and subsequently invoiced to Mr Robertson. When inspected, it had its original licence plates on it which were NR-329. Because Mr Robertson would be away crayfishing, it was arranged that when the repairs were carried out the appellant should re-licence the truck.

8 On 18 November 1996 the appellant and two others took the truck to the Department of Transport to have it re-inspected and re-licensed. At that time the licence plates were no longer on the truck. The vehicle passed the inspection and the inspector stamped and signed an inspection report. The appellant and the two others then went into the office where they spoke to a Ms Holthouse, the person referred to in count (1) on the indictment. The appellant was then given a form to fill in. The form was headed up:

Evidence Act 1906 (as amended)

"I, SWANN GEOFFREY MAXWELL DATE OF BIRTH 15 2 52

representing (name of company, if applicable) DENVILLE PTY LTD

Postal Address PO Box 755 Esperance (Postcode) 6450

make application for the motor vehicle, the details of which are shown below, to be licensed / transferred from the previous owner. (Delete whichever does not apply.)

I PURCHASED THIS VEHICLE FOR (if not purchased mark N/A) $ 1,500.00

THE MARKET VALUE OF THE VEHICLE AT THIS DATE OF APPLICATION IS $

WARNING An applicant who understates the purchase price or the market value of a vehicle commits an offence under the Stamp Act 1921 and is liable to a penalty of $10,000. The purchaser is also liable for the payment of the shortfall of stamp duty as a result of any such understatement, together with a penalty of 100% of that amount.

Engine Number Chassis Number/Vehicle Identification Number

Address - Number and Street BANDY CREEK BOAT HARBOUR

In the event of any dispute of ownership I accept full responsibility for the registration in my name.

I make this solemn declaration by virtue of section 106 of the Evidence Act 1906 (as amended).

Declared at ESPERANCE this EIGHTEENTH day of NOVEMBER 1996

Signature [P Holthouse] Classified Civil Servant

(a) an amount allowed by the seller of a motor vehicle on a trade-in or an exchange of any article; and

(b) any amount paid to the seller of a motor vehicle for accessories etc, included with or incorporated into the vehicle and for preparation of the vehicle for delivery to the purchaser.

'MARKET VALUE' means the amount for which a motor vehicle might reasonably be sold, free from encumbrances, in the open market. As a general rule the 'Market Value' of a vehicle will be the same as the purchase price plus any amount referred to in (a) and (b) above and after adding back any special discount which is not available to the purchaser generally (eg Fleet owner's discount, sales tax exemption)."

9 The witness to the statutory declaration was Ms Holthouse, who was an employee of the Department of Transport. It was common ground at the trial that Ms Holthouse was a classified civil servant. The licence fee was paid by Dinet Holdings Pty Ltd, another company controlled by Mr Swann. There had not in fact been a purchase of the truck by Denville or anyone connected with the appellant.

10 In Regina v Mungovan (1869) 6 WW and A'B 157, it was held by the Victorian Full Court that the taking of a statutory declaration must be authorised by some statute, regulation or by-law in order to support a prosecution.

11 The statutory declaration was required pursuant to reg 5 of the Road Traffic (Licensing) Regulations 1975 made pursuant to s 111(5) of the Road Traffic Act 1974. The regulation provides that an applicant for an issue or transfer of a licence can be required to furnish proof of his ownership of the vehicle "by statutory declaration or otherwise". Section 106 of the Evidence Act 1906 provides that:

"It shall be lawful for any justice of the peace or other person by law authorized to administer an oath to take and receive the declaration of any person voluntarily making the same before him in the following form, namely -

I, A.B., [insert place of abode and occupation], do solemnly and sincerely declare that [here state the facts], and I make this solemn declaration by virtue of section 106 of the Evidence Act 1906.

C.D., justice of the peace [or as the case may be]."

12 Section 2 of the Declarations and Attestations Act 1913 provides that:

"Whenever by or under any Act or statutory regulation (whether passed or made before or after the commencement of this Act) it is provided -

(a) that any statutory declaration shall or may be made before a justice of the peace; or a justice of the peace or some other person;

such declaration or instrument may be made before, or signed and executed in the presence of, and attested by -

Provided that no person under 18 years of age shall be qualified to take any statutory declaration, or attest any such instrument."

13 Section 5 of the Interpretation Act defines a "statutory declaration" if made in Western Australia as "a declaration made under the Evidence Act 1906 or the Declarations and Attestations Act 1913". It was submitted that the word "or" is to be given a disjunctive meaning. The implication was that the two categories of declaration were mutually exclusive. In my opinion they are not. Section 106 of the Evidence Act is a provision by or under an Act by which a statutory declaration may be made before a justice of the peace. Consequently, a person or persons listed in the Schedule to the Declarations and Attestations Act is qualified to witness a statutory declaration made under s 106 of the Evidence Act.

14 The persons named in the Schedule include "an officer of the State or Commonwealth Public Service". Ms Holthouse was an officer of the State Public Service.

15 The defect in the form is that the words "do solemnly and sincerely declare that ..." are not included. For example, the form could have been drafted as follows:

"I ... make application for the motor vehicle, the details of which are shown below, to be licensed/transferred from the previous owner (delete whichever does not apply) and do solemnly and sincerely declare as follows:"

16 The omission of the words in italics has the effect that there has been a departure or deviation from the form as prescribed in s 106 of the Evidence Act. Section 74 of the Interpretation Act 1984 provides that:

"Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used."

17 The question is whether the omission of the relevant words constitutes a deviation which materially affects the substance of the matter or is likely to mislead.

18 It was submitted on behalf of the appellant that the deviation from the form in this case materially affected the substance of it, because without the words that were missing the document was not in fact a statutory declaration. Consequently, went the submission, it was misleading as it could refer to nothing more than an acknowledgement that in the event of a dispute over ownership the "declarant" took full responsibility for the registration in his name.

19 It was submitted on behalf of the respondent that the omission of the words "do solemnly and sincerely declare that" from the form did not materially affect the substance of the form and were not likely to mislead. In support of this submission it was contended that it would be obvious to any applicant filling in the form that the form was a statutory declaration by virtue of it containing the heading stating that it was a statutory declaration and the reference to the Evidence Act 1906. The form also required the applicant to sign the form directly below a sentence which read:

"I MAKE THIS SOLEMN DECLARATION BY VIRTUE OF SECTION 106 OF THE EVIDENCE ACT 1906 (AS AMENDED)"

20 Counsel for the respondents submitted that the omission of the relevant words was a deviation of the kind referred to in Rex v Shing Duck (1901) 7 Argus LR 96. In that case the deviation was that the word "Colony" was used instead of "State" before "of Victoria" and the year in the jurat was 1801 instead of 1901. The Full Court held there was "nothing in the objection", but the note of the case provides no detailed reasons.

21 In Rex v Haynes [1916] NZLR 407 Hosking J regarded the equivalent concluding words in the equivalent New Zealand form in that case as critical. They had been omitted in that case. As his Honour said at 421:

"This Court in Rex v Smith [29 NZLR 244; 12 GLR 246], where what purported to be a declaration for the purposes of the Pawnbrokers Act omitted the words 'And by virtue of the Justices of the Peace Act 1908', held that the omission was more than a slight deviation. It treated the omitted words as essential. In my opinion, they help not merely to warn the declarant of the consequences to which he may expose himself, but also to point out to the person asked to take the declaration the authority which justifies him in doing so. The concluding portion of the prescribed form is not of such a character as to call for any deviation; it is a fixed and stereotyped formula."

22 The form prescribed in s 106 of the Evidence Act is a form of long standing and is in conformity with that provided for in the Statutory Declarations Act 1835 (Imp) by s 18 and Form 127 in the Schedule. The words "do solemnly and sincerely declare" are not the equivalent of the words "make oath and say as follows" in the context of an affidavit. There is an important distinction. The person before whom an affidavit is taken is required to administer an oath or affirmation before the affidavit is signed. A statutory declaration, however, "may be made before, or signed and executed in the presence of" a person named in the Schedule pursuant to s 2 of the Declarations and Attestations Act. The words "solemnly and sincerely" before the word "declare" do not of themselves have any particular work to do other than to reinforce the formality of what is declared. The words "solemnly and sincerely say" would be to the same effect. It was submitted on behalf of the appellant that it is unclear whether there needed to be an oral confirmation by the declarant of the truth of the declaration. In my opinion, when s 2 of the Declarations and Attestations Act 1913 is read with s 106 of the Evidence Act the declaration may be "made before or signed and executed in the presence of and attested by" a qualified person. Thus, signature in the presence of the relevant witness is sufficient.

23 In my opinion, the two most significant features of the form used in this case are, first, the heading of the document incorporating the words "STATUTORY DECLARATION" and "Evidence Act 1906 (as amended)" and, secondly, the words immediately above the appellant's signature:

"I MAKE THIS SOLEMN DECLARATION BY VIRTUE OF SECTION 106 OF THE EVIDENCE ACT 1906 (AS AMENDED)

24 These words appear before the words "SIGNATURE OF DECLARANT" which are followed by the words " DECLARED BEFORE ME" which precede the spaces for the name details and signature of the witness.

25 The importance of the heading or description of the relevant document as a statutory declaration was emphasised in Rex v Haynes, supra, in which the prescribed form under s 287 of the Justices of the Peace Act 1908 (NZ) was not followed. That provision and the prescribed form were substantially to the same effect as s 106 of the Evidence Act. Section 6(h) of the Acts Interpretation Act 1908 (NZ) provides that:

"Wherever forms are prescribed, slight deviations therefrom, but to the same effect and not calculated to mislead, shall not vitiate them."

26 The declaration was made in respect of a list of chattels said to have been lost in a household fire. The list was referred to in the declaration but not annexed. It was not exhibited to the declarant at the time of making a document headed "PARTICULARS OF CLAIM" followed by:

"Articles damaged or destroyed: Household furniture and effects per list. Sum insured with the company: Pounds Sterling 150. Amount claimed: Pounds Sterling 135.

I, Olive Theresa Haynes, do hereby solemnly and sincerely declare that the foregoing is a true and faithful account of the loss sustained by me on the occasion of the late fire at Mangatoro on the 12th December, 1915; that I have in no manner caused the said loss or by any fraud or wilful misrepresentation sought unjustly to benefit thereby.

And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.

Zealand, this fourteenth day of December, one ) OLIVE thousand nine hundred and fifteen, before me - ) HAYNES

27 The declarant was charged under s 133 of the Crimes Act 1908 (NZ), the equivalent for relevant purposes of s 170 of the Criminal Code. The Court of Appeal of New Zealand held, by a majority of four to one, Stout CJ dissenting, that the deviation from the form equivalent to that prescribed in s 106 of the Evidence Act (WA) was not a slight deviation. The majority followed Rex v Smith (1909) 29 NZLR 244. In that case, the accused had made a false declaration before a Justice of the Peace which followed Form 50 in the schedule to the Justices of the Peace Act 1908 (NZ) except that the words "and by virtue of the Justices of the Peace Act 1908" were omitted. The Court of Appeal held that these words were essential to the validity of a declaration under the Act and their omission was not a "slight deviation".

28 Similarly, in Rex v Haynes it was held that the form used was not merely a "slight deviation" from the form prescribed but the substitution of an entirely different form. As Edwards J said at 415:

"This substituted form does not refer to the Justices of the Peace Act 1908, but it has been assumed that it correctly states the consequences to a declarant making a false declaration under that Act."

29 The statement regarding the consequences was an inaccurate statement of the law. Edwards J went on to say at 416:

"A trifling deviation from that form may perhaps not vitiate the declaration, but the deviation in such a case must be so trifling as to leave the form in substance the form prescribed."

30 Cooper J at 418 considered that "slight" meant "immaterial". In s 74 of the Interpretation Act (WA) the test is whether the deviation "materially" affects the substance or is "likely to mislead". In my opinion the form used in this case is such that the omission of the relevant words does not materially affect the substance and was not likely to mislead. The present is a case of the kind contemplated by Sim J in Rex v Haynes at 419 when his Honour said:

"The provision of the Interpretation Act was intended, I think, to cover cases where an attempt had been made to follow the prescribed form, and not to meet cases where that form had been deliberately ignored and something different had been substituted."

31 In this case there has been a very substantial attempt to incorporate the form by virtue of the heading and other aspects which I have mentioned. In my opinion the omission of the relevant words did not materially affect the substance of the relevant form as a statutory declaration incorporating an application to licence a vehicle. The heading and the critical words immediately prior to the space for signature were such as to prevent any possibility that the declarant would be misled, or that the omitted words materially affected the substance of the document.

32 For these reasons, while I would grant leave to appeal, I would dismiss the appeal.

33 PIDGEON J: I agree with the reasons of the Chief Justice.

34 IPP J: I have read the reasons to be published by his Honour the Chief Justice. I agree with them and his Honour's conclusions. I have nothing further to add.